Will virtual reality video game content be protected by the Freedom of Speech?

A new reality

Virtual reality, which was once a futuristic subject is currently making headlines on every trend list for 2016. The industries affected by virtual reality (VR) are widely varied. Innovative VR solutions can be found in, for example, health care, the travel industry, and the video game industry. At first sight these do not seem to have much in common. However, when it comes to the application of VR, one factor is the common denominator: the experience of immersion.

You can be virtually transported to a different country and be immersed in a new world from the comfort of your own home. Health care providers benefit from surgery simulations and patients can undergo phobia treatment through VR. The benefits of immersion through VR are as evident as they are varied. This experience of immersion into a new (but virtual) reality is exactly what game developers and gamers alike aim to create.

In an article on GamesBeat, Palmer Luckey, the founder of Oculus VR, is quoted as saying: “You can experience anything that’s possible and anything that’s impossible. It puts you into a difference space where there are almost no rules.” Current technology may know no boundaries, but what about the law? What happens when users are immersed in a world that’s morally questionable? A concern is that such content will lead to an incitement to violence. Video game developers are not likely to put a moral compass next to their content. Palmer Luckey made the point that the Oculus Rift will be an open platform and Oculus VR does not want to make judgement calls on what is and what is not appropriate: “We’re not willing to define what ‘bad’ is”. So if the developers will not do this, will the government go as far as to limit violent or sexual content of VR games?

The answer to this question is of vital importance to video game developers. Moreover, if the approach to this issue varies in different jurisdictions, US video game developers could face a distribution issue when they distribute their product in a global market. Regulated content would inhibit video game developers in the creative process, but when regulation is different in, for example Europe, it also inhibits developers in their market options and international expansion plans.

Current regulation on video game content

So how is the approach to VR video game regulation different in Europe than in the US? In order to answer this question and to illustrate the actual issue at hand we first look at the US law on which current video game content is currently based. At dispute in the landmark case Brown v. Entertainment Merchants Association was a California law that limited the sale of violent and sexual games to minors. (We discuss age classification for VR video games in more detail here).

The constitutional problem with this limitation is that the government decides what content consumers get to experience, in other words, it limits free speech as protected under the first Amendment of the Constitution. However, the decision in this case was not unanimous. Even in concurring with the judgement, Chief Justice Alito clearly envisaged that the position might be different as interactive experiences become increasingly realistic. VR video games would have this effect.

In the US, VR may well lead to a re-examination of issues relating to video games as discussed in the abovementioned case. Similar challenges will arise in Europe. The EU equivalent of the freedom of speech is codified in art. 10 of the European Convention on Human Rights (ECHR) and is referred to as the freedom of expression.

Similarly to the US, video game content regulation in the EU can be based on a landmark case on the freedom of expression. In the Handyside case it was decided that ‘even when a form of media offends, shocks or disturbs the area it is released in, in a Europe that should be known for being tolerant and open-minded, this must be protected under the freedom of expression under article 10(1) ECHR.’[1]This would lead to the conclusion that Europe will be tolerant towards sexual or violent content. A tolerance towards morally controversial content would be beneficial for video game developers. It means that the court is likely to interfere with member states’ regulation if the court considers a regulation too strict, which would open up the entire EU market for US companies.

However, the EU also leaves discretionary power, or margin of appreciation, to the member states. An example of this in the context of video games is the stricter regime in Germany, where video game content is regulated under the criminal code.[2] This prevented video games such as Mortal Kombat and Manhunt to be distributed in Germany, one of the largest markets in the EU. If VR video games would be regulated in a similar manner it would have a great effect on the distribution opportunities for US video game developers. This is in contrast with the US, where the Supreme Court struck down the California law that limited the sale of such video games.

Immersion

As stated earlier, immersion is key to the VR experience. A user can experience senses such as touch, smell, sound and sight. This is important to keep in mind, because at the end of the day the actual content of VR video game is likely to be similar to that of regular video games. There will still be zombies to kill and worlds to conquer. The question is whether or not this immersion in combination with violent or sexual content could lead to an incitement to violence.

It is not unthinkable that the courts will re-examine the judgments discussed above, because of these new developments in gaming. With immersion being the differentiating factor between current video game content and VR video game content it will be interesting to see what direction the regulation goes and if immersion indeed will be a defining factor. It is difficult to determine what exactly the effect is of immersion in gaming on users, and if it indeed produces a greater risk to an incitement to violence. However, with regards to regulation of VR video games the immersion is intrinsically linked to the sexual or violent content of the game, because immersion in a more innocent game without any portrayal of sexual or violent content, should not cause these issues. Thus, content still remains the subject of discussion.

Conclusion

It has yet to be seen whether the immersive aspect of VR video games truly has a greater impact on gamers, and eventually on society. Whether or not it does it does, the courts in the US and the EU could very well have to take a stance again on video game content. Just as with any other emerging technology the regulation struggles to keep up and often comes in after the fact. In order for video game developers to be ahead of the curve when it comes to distribution of their VR video games, it is wise to keep an eye on content regulation in an international context.